by Gene Doyle, LMSW
As explained in 18 NYCRR § 358-3.4(i),
"As an appellant you have the right:
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"(i) at your request to the social services agency, to receive necessary transportation or transportation expenses to and from the fair hearing for yourself and your representatives and witnesses and to receive payment for your necessary child care costs and for any other necessary costs and expenditures related to your fair hearing[.]
In a May 24, 1990 letter to People Organized for Our Rights, Inc. (P.O.O.R.), Acting Deputy Counsel for Fair Hearings Russell J. Hanks clarified Office of Administrative Hearings (OAH) policy "concerning reimbursement for expenses incurred in obtaining materials necessary to prepare for a fair hearing." Mr. Hanks explained (at pp. 1-2) that
"You assert in your letter that reimbursement for materials necessary for hearing preparation should be considered to be within the scope of Department Regulations at 18 NYCRR 358-4.3(d), which provide that, upon request of the appellant, the local agency must provide payment for 'necessary costs and expenditures related to the fair hearing.'
"Subject to the following, I agree with your assertion that such expenses may be reimbursible. Section 358-4.3(d) specifically requires that an appellant request the local district to provide reimbursement for expenses related to a fair hearing. If the local agency denies such request, or fails to act thereon, this determination should be requested as an additional issue for the fair hearing to which it relates. (Note that this additional issue should be requested sufficiently in advance to allow the local agency time to prepare its case.) The appellant would then have the burden of establishing at the hearing that the materials for which reimbursement was sought were, in fact, 'necessary' as required by Section 358-4.3(d). This would, by definition, always be a factual question since a determination of necessity would be limited to the facts of a particular case.
"With regard to your question as to whether the reimbursement issue would survive when the related substantive issues have been settled, I can see no reason at this time why the local agency's failure to provide reimbursement would not continue to be reviewable subject to any applicable statute of limitations. Assuming a timely request, the question would be whether such materials were 'necessary' for the fair hearing in light of the specific facts of the case under review."
In a January 30, 1992 letter to P.O.O.R., Mr. Hanks clarified OAH policies "concerning the issuance of subpoenas at fair hearings." Mr. Hanks explained (at p. 1) that
"If the hearing officer determines that the issuance of a subpoena is necessary and appropriate, he or she will sign a form subpoena which the Department has available for this purpose. It is the appellant's responsibility, however, for the service of this subpoena. If fees are incurred for service, such fees should be requested from the local agency pursuant to 18 NYCRR 358-4.3(d), which provides that the social services agency must provide for any necessary costs and expenditures related to the fair hearing. If the agency denies the request, this determination can be included as an issue for the fair hearing or can be the subject of another fair hearing, as appropriate."
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